It is commonly heard by one and many that the courts anywhere and everywhere function and adjudicate a particular legal matter on the basis of evidence. A fact is deemed true by the court only if it is supported by a credible piece of evidence. Reality in the eyes of court is that which is manifested by evidence.
In modern times, with the advancement of technology, there has been a complete overhaul in the manner in which people work, communicate and interact with others, there has been a great use of technological gadgets and a lot of tasks have undergone digitisation. As a consequence, a lot of data concerning one’s work, communication and various others functions of life gets recorded in the digital format. Since those records can also be used to prove or disprove the existence or non-existence of relevant facts and circumstances of any particular case, the Law of Evidence, had to be adequately amendment, for acknowledging and including the same as an acceptable piece of evidence. The Indian Evidence Act, 1872 which lays down the law, relating to evidences in India incorporated by way of the Amendment of 2000, two sections, 65A and 65B, to deal with electronic evidence and when and how can the same be admissible by the courts in India.
The present work particularly deals with a particular question of law that arose with respect to the application of Section 65B (4) by the Courts. In order to grasp the seminal issue of the paper it may be expedient to appreciate that evidence for a particular fact, produced in court may be in its original form (primary evidence) or it may be a copy of the original evidence (secondary evidence), in view of its availability and feasibility in producing the same in court. This issue of feasibility commonly arises in cases when the relevant piece of evidence is part of a voluminous record of data, which cannot be conveniently produced in its entirety in the court, or is a part of such a computer system or computer network, which cannot be physically produced in the court. In such situations, the respective record, is stored in CDs, Pendrives etc. or the relevant excerpt of the voluminous record is only printed out and produced in the Court. However, 65B (4) provides that before production, the same is required to be authorised and certified by the respective authority, in order to ensure that the credibility and veracity of the same is maintained and any scope of manipulation is done away with, to the best possible extent. Now, with respect to the above stated requirement of certification, the Apex Court of the country (and consequently the various High Courts) had held on to different legal positions. The following text primarily seeks to bring forth the various distinguishing positions which were held by the courts previously and state the law, at the present instance, post decision in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal with respect to the requirements of certification.
SECTION 65B(4) OF THE EVIDENCE ACT
Succeeding Section 65A, which states that the contents of an electronic evidence may be proved in accordance with the provisions of section 65B, section 65B comprehensively lays down the law for the admissibility of electronic records, by clearly specifying as to when a particular electronic record would be deemed to be a document, the conditions which should be fulfilled in respect of a computer output, when would multiple or a combination of computers be deemed to be a single computer when the function of storing or processing information is carried on through them, rules with respect to certification of the evidence by responsible authority and other rules.
Clause (4) of Section 65B lays down the conditions which need to be fulfilled, when a particular part or statement of an electronic record is intended to be given in a proceeding. The section enumerates that the same must be accredited by a certificate which identifies the electronic record containing that statement and which must accompany the electronic record like Compact Disk, Pen drive etc., in which the respective statement has been recorded. Further, such certificate must describe the manner in which the electronic record was produced, state the particulars of the device involved in the production of that record, deal with the applicable conditions mentioned under section 65B clause (2) and finally the certificate must be signed by a person occupying a responsible official position in relation to the functioning of the respective electronic device, however such person is only required to specify that the certificate is to the best of his knowledge and belief.
Fundamentally, all these measures have been put in place to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record, sought to be used in evidence. Since electronic records are more susceptible to tampering, alteration, transportation, excision etc. without such safeguards, the whole trial based on proof of electronic evidence can lead to travesty of justice.
CERTIFICATION BY RESPONSIBLE AUTHORITY: JUDICIAL PRECEDENTS IN THE NAVJOT SANDHU VERDICT
The case of State (NCT of Delhi) v. Navjot Sandhu was the earliest notable case relating to the application of Section 65B of the Evidence Act and it dealt with the issue, concerning the production of electronic record in the form of printouts of computerised records of calls made by cell phones, as evidence. The Apex Court laid down the law by stating that as per Section 63, secondary evidence meant and included, among other things, copies made from the original, by mechanical processes which would in themselves ensure accuracy of the copy, and copies compared with such copies. Further, Section 65 enabled production of secondary evidence of the contents of a document, if the original was of such a nature, that it was not easily movable. Now since it was not disputed, that information contained in call records were stored in huge servers which could not be easily moved and produced in the court. Hence, it concluded that, print outs taken from the computers or servers by mechanical processes and certified by a responsible official of that service-providing company could be led in evidence, through a witness, who could identify the signatures of such certifying officer or else speak of the facts, based on his individual knowledge.
It was also clarified, that other than compliance of the requirements of Section 65-B, there was no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65 and though it might be that the certificate containing the details in sub-section (4) of Section 65-B was not filed in the instant case, but yet, that did not mean, that secondary evidence could not be given, as law permitted such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.
Judicial Crossroads: The Anvar P.V. Decision
In this case, it was stated that, proof of electronic record was a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very heading of Section 65-A of the Evidence Act, read with Sections 59 and 65-B was sufficient to hold that the special provisions relating to electronic record shall be governed by Section 65-B of the Evidence Act. It was a complete code in itself and being a special law, the general law under Sections 63 and 65 would have to yield. The maxim Generalia specialibus non derogant that is, special law will always prevail over the general law, would be applicable. It stated that, the court (in Navjot Sandhu case) omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record and since secondary evidence by way of electronic record is wholly governed by Sections 65-A and 65-B, Sections 63 and 65 have no application. To that extent, the Navjot Sandhu case does not lay down the correct legal position.
Secondary evidence in the form of an electronic record, shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall have to be accompanied by the certificate, in terms of Section 65-B, without which, such secondary evidence, would be inadmissible.
A DISCORDANT NOTE: TOMASO BRUNO JUDGEMENT
Despite categorical overruling of the Navjot Sandhu judgment in the Anvar P.V. case, the Hon’ble Supreme Court in the case of Tomaso Bruno v. State of UP, manifesting apparent obliviousness to its previous verdict, went on to decide the case in consonance with the Navjot Sandhu verdict to re-establish the repudiated legal position and hold that Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. Hence, the declaration of law in the Tomaso Bruno case following the Navjot Sandhu verdict that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act and to conclude to make CCTV footage admissible, would be against the legal position laid down in Anvar P.V. (wherein the Navjot Sandhu case got overruled) and cannot be said, to be a correct statement of the law. Thus consequently, leaving a wide scope of a possible future reversal, of the verdict.
Shafhi Mohammed Judgment: A Newer Approach
In this case, a relatively different approach was evident. It was stated that the procedural requirement under Section 65-B (4) of the Evidence Act, of furnishing a certificate is to be applied only when such electronic evidence is produced by a person, who is in a position to produce such certificate, as being himself in control of the said device, instead of the opposite party. In a situation, where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such a case, provisions under the said sections can certainly be invoked. If the same would not be permitted, it will be denial of justice to the person who is in possession of authentic evidence but on account of statutory mandates, namely certification under Section 65-B (4) the same would be kept out of consideration by the court, which such party might not be able to secure. Thus, the certification requirement was not held to be mandatory for each and every case and also such requirement being procedural in nature, the same can be relaxed by the court, wherever the interest of justice so required.
THE ARJUN PANDITRAO KHOTKAR CASE FACTS
In this case, the election of the Appellant was challenged by the Respondent, who was one of the defeated candidates. It was alleged that the nomination papers had to be filed before a certain time on a particular day and since the Appellants had deposited the same to the concerned Returning Officer, beyond the given time, his nomination was not filed in accordance with law and should have been rejected.
The respondents, supported their claim by way of the records of the video-camera, that had been installed both inside and outside the office of the Returning Officer. When the matter went to Court, in view of the requirements of Section 65B of Evidence Act, the Appellants were asked to produce necessary certificates for the same. However, despite of repeated applications made in favour of regional as well as national authorities, concerned with the conduction of elections, no certification could be received for the electronic evidence.
In High Court, the electronic evidence was decided to be admissible, on the basis of the oral testimony of the concerned Returning Officer itself and thus the matter was ruled in favour of the Respondents, and election of the Appellant was set aside.
WILFUL REFUSAL TO GRANT CERTIFICATION
The Hon’ble Supreme Court stated that in the present case the Respondents made all efforts possible both by approaching the High Court and otherwise, to get the requisite certification under Section 65B (4) of the Evidence Act from the authorities concerned, yet the authorities concerned, wilfully refused, on some pretext or the other to issue the same.
In this respect the Court reiterated the legal position determined by it in the P.V. Anwar case that, in a fact circumstance where the requisite certificate had been applied for from the person or the authority concerned, and the person or authority either refused to provide such certificate, or did not reply to such demand, the party asking for such certificate could apply to the Court, for its aid, in acquiring the same. However, once such an application was made to the Court, which then gave an order or directed that the requisite certificate should be produced by a person to whom a summons in that respect had been issued, it could be deemed that the party asking for the certificate had done all that he could possibly do to obtain the same.
The Apex Court stated two relevant Latin Maxims lex non cogit ad impossibilia which meant that law does not demand the impossible, and impotentia excusat legem which connoted that when there was a disability which made the obedience of law impossible, then such alleged disobedience was excusable.
Thus, acknowledging the application of the maxims to the facts of the case the Court made it very clear that though Section 65B (4) is mandatory, yet, on the facts of this case, the Respondents, having done everything possible to obtain the necessary certificate, which had to be given by a third-party over whom the Respondents had no control, they must be relieved of the mandatory obligation contained in the said sub-section.
STAGE OF CERTIFICATION
In this respect the court, acknowledged that though section 65(B) does not talk about the stage at which such certification can take place but still it was clarified in the P.V. Anwar case that in cases where either a defective certificate was given or where such certificate had been demanded but was not given by the concerned person, the Judge conducting the trial was empowered and he must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that the requisite certificate be given.
However, it was added that the same was, subject to the discretion exercised by the courts in civil cases in accordance with law and with the requirements of justice, with regard to the facts of every individual case. Further, with respect to criminal trials, it stated that it was important that the general principle that the accused must be supplied of all the documents that the prosecution seeks to rely upon, before commencement of the trial, should be kept in mind. Thus, it was clarified that the exercise of power by the courts in criminal trials in allowing a particular piece evidence to be filed at a later stage, should not in any respect result in serious or irreversible prejudice to the accused. The courts were required to draw a balance, in respect of the rights of parties while examining any application by the prosecution under Sections 91 or 311 of the Criminal Procedure Code or Section 165 of the Evidence Act.
SECTION 65-B: A MANDATORY REQUIREMENT
As it has already become evident by the aforesaid, that the court relieved the respondents from the mandatory certification requirements under section 65B (4), however the same happened only due to the prevailing facts and circumstances of the case, as in finality the court did not mince its words in reiterating the decision of the P.V. Anvar case and acknowledging the incorrectness of the clarification provided by the Shafhi Mohammed case.It categorically held that Section 65B (4) was a condition precedent to the admissibility of evidence by way of electronic record and even oral evidence in the place of such certificate could not suffice the mandates of Section 65B (4) as the same was a mandatory requirement of the law. It also went on to state that Section 65B (4) of the Evidence Act clearly stated that secondary evidence was admissible only if led in the manner stated and not otherwise. Construing it in any other manner, would render Section 65B (4) otiose.
The Arjun Panditrao Khotkar case has been a significant decision of the Supreme Court with respect to the admissibility of electronic evidence. Expressly and impliedly, the court has clarified various points of significance with respect to electronic evidence, especially secondary evidences.
The court stated all those interpretations to be incorrect which advocated for the admissibility of secondary evidence of any electronic record under any other sections of the Evidence Act namely section 63 and section 65.
The Court categorically indicated the problems in the legal positions determined by the Navjot Sandhu case and the Shafhi Mohammed case.Further, it secured the interests of justice by giving special consideration to the facts that case and accordingly allayed the requirements of certification under section 65B for the Respondents, who despite of all possible efforts on their part, were not able to get the same by the respective authorities.
Lastly, it upheld the judgment in the P.V. Anvar case and decided that the requirements of certification under section 65B (4) were mandatory in nature and could not be dispensed with until and unless there were grave circumstances, like the one which existed in the present case.
They also clarified that oral evidence by the respective authority, as it happened in the present case, could not take place of the certification requirements under section 65B (4) and would not be sufficient to make the electronic evidence admissible in court.
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MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?
The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.
The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.
It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?
In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.
It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.
The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-
Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.
Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.
HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956
The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.
The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
FACTS OF THE CASE:
The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.
The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.
the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.
Contentions Raised by the Parties:
It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.
It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.
The submissions of the petitioner were countered by the Respondent on the following grounds:
Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.
It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.
The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.
The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.
Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.
KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?
The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.
The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.
The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.
In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.
Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.
It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.
Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.
It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.
Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.
The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?
In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.
Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.
The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.
GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN
The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.
It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.
It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.
It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.
In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.
It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.
Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court
As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.
The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.
It was ordered by the court status quo till July 11, the next date of hearing.
The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.
In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.
In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.
Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.
Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.
As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.
It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.
It is submitted that these observations would apply across the board, in the entire NCT of Delhi.
Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.
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